The applicant, Mr Gábor Tánczos, is a Hungarian
national, who was born in 1979 and lives in Körmend, Hungary. He is
currently serving a prison sentence in Budapest Prison. He is represented
before the Court by Mr Z. Somos, a lawyer practising in Budapest. The
respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary,
Ministry of Justice.

The facts of the case, as submitted by the parties,
may be summarised as follows.

A. Particular circumstances of the case

1. The first trial

On 7 April 1998 criminal proceedings were instituted
against the applicant. He was charged with having murdered a 10-year-old
girl by cutting her throat. In the ensuing proceedings he was assisted
by a defence counsel of his choice.

On 15 October 1998 the Vas County Public Prosecutor’s
Office preferred a bill of indictment.

On 12 March 1999 the Vas County Regional Court
convicted the applicant of murder and sentenced him to 14 years’ imprisonment.
The Regional Court relied on, inter alia, evidence given by the applicant at trial.

On appeal, on 17 November 1999 the Supreme Court
held a hearing. It held that the first-instance judgment was ill-founded
within the meaning of subparagraphs (a), (b) and (c) of section 239(2)
of the Code of Criminal Procedure; consequently, it had to be quashed
under sections 261(1) and 262(1) of that Code and remitted to the first-instance
court. It ordered the Regional Court to analyse the contradictions contained
in the various statements made by the applicant during the investigations
and at trial.

2. The second trial

a. The first-instance proceedings

In the resumed proceedings, on 14 February 2001
the Regional Court convicted the applicant of murder and sentenced him
to 13 years’ imprisonment and barred him from participating in public
affairs for 8 years. The Regional Court relied on the fact that, during
the investigations, the applicant had admitted the murder, on the testimonies
of some 110 witnesses, the opinion of some 25 experts, documentary evidence,
the inspection of the crime scene and forensic analyses. The defendant
did not wish to testify; instead, he maintained the statements he had
made during the investigations along with those which he had made before
the Regional Court during the first trial. His previous statements were
read out in court.

b. The appellate
proceedings

i. Preliminary proceedings before the Supreme
Court

In the appeal proceedings, on 11 July 2001 the
Supreme Court refused the request of the applicant’s lawyer to obtain
copies of the video recordings made during the investigation. The Supreme
Court pointed out that he was entitled to obtain copies of any written
minutes prepared on the basis of the recordings.

On 15 October 2001 the Supreme Court, pursuant
to section 248(2) of the Code of Criminal Procedure and in response
to the submission by the defence of the opinion of a private expert,
instructed the expert chemist who had given an opinion during the first-instance
trial to complete his report concerning the alleged mishandling of the
material evidence in the case. The expert submitted his supplementary
opinion on 30 October 2001.

ii. Hearings before the Supreme Court

On 6 November 2001 the Supreme Court held a hearing.
The court heard the expert chemist and both the defence and prosecution
put questions to him. The court refused to appoint an additional expert
in physics, as was proposed by the defence, and declared the taking
of evidence closed.

A further hearing took place on 13 November 2001.
The Supreme Court rejected the defence’s further proposals to obtain
the opinions of an expert physicist and an expert in graphological lie-detection,
as well as to hear the applicant.

At the hearing of 20 November 2001, the Supreme
Court again refused to hear the applicant, despite insistence by the
defence. It was pointed out that during the first-instance proceedings
the defendant could have, at any time, pleaded his case, but he had
deliberately chosen not to. At the appeal stage, the hearing of the
applicant’s testimony would only be permitted if necessary to complete
the findings of fact. In any event, he had the right to address the
court last.

At the hearings of 29 and 30 January 2002 the
applicant addressed the court last.

iii. The Supreme Court’s order

On 5 February 2002 the Supreme Court adjudicated
on the applicant’s appeal. It made a preliminary review of the judgment
which it found well-founded as a whole. It made several corrections
to the text and then considered that it was of a sufficient standard
to be considered on the merits rather than quashed (érdemi felülbírálatra alkalmas). In the light of the evidence
which it had completed itself, it was able to make a rectification to
the relevant part of the first-instance decision by way of an order
(végzés)
rather than a judgment. Thereafter it upheld the conviction and sentence.

In particular, the Supreme Court noted that the
Regional Court had respected its instructions on to how to repeat the
first-instance proceedings. It observed that, since the applicant had
refused to give evidence in the resumed proceedings before the Regional
Court, all his utterances previously made in the case had been read
out before the Regional Court and the applicant had been free to comment
on them. Moreover, the video tapes available to the Regional Court were
played at the hearings and all the persons involved in the case were
heard. Furthermore, additional expert opinion was obtained.

The Supreme Court emphasised that, the taking
of evidence having been closed in the first-instance proceedings, the
provisions of the Code of Criminal Procedure did not allow for a repetition
of that evidence before the second-instance court, which was only called
on to review, under section 236 (1), the disputed judgment and the earlier
proceedings. Insofar as the opinion of the defence’s private expert
was concerned, the Supreme Court specified that it was admitted to the
file as documentary evidence, although largely irrelevant.

B. Relevant domestic law

Act no. 1 of 1973 on the [Old] Code of Criminal
Procedure (as in force at the material time) provided as follows:

Section 61

“(1) Evidence is constituted in particular
by ... the testimony given by the accused.”

Section 87

“(1) The authority is obliged to interrogate
the accused in detail. ...

(2) At the beginning of the interrogation, the
accused shall be warned that he is under no obligation to give evidence,
that at any time during the interrogation he is free to refuse to give
evidence and that what he says may be used as evidence. ...”

Section 214

“(1) The court shall determine the case by
a judgment (ítélet) if it convicts or acquits the defendant.”

Section 236

(1) Unless the law provides otherwise, the appellate
court shall review the judgment, together with the entirety of the preceding
court proceedings, irrespective of who has appealed and for what reason.

“(1) The appellate court shall base its decision
on the facts as established by the first instance court unless the first
instance judgment is ill-founded.

(2) The first instance judgment is ill-founded
if:

a) the facts have not been explored;

b) the court has failed to establish the facts
or the findings of fact are deficient;

c) the findings of fact are in contradiction
with the contents of the documents;

d) the court has drawn incorrect conclusions
from the findings of fact in regard to a further fact.”

Section 240

“Evidence may be taken in order to remedy the
ill-foundedness of the first instance judgment if the facts are deficient
or have been partially unexplored. Evidence shall be taken at hearings.”

Section 248

“(2) Prior to the hearing, the appellate court
may, at its preliminary deliberations in camera, order the taking of evidence, if necessary.”

Section 257

“(1) If the appellate court modifies the first
instance judgment, it shall determine the case by a judgment (ítélet); otherwise, it shall do so by an order (végzés).”

Section 258

“(1) In the event of ill-foundedness (section
239(2)), the appellate court:

a) shall complete or correct the facts if the
facts can be established fully and properly from the documents, or through
induction, or from the evidence taken; and shall review the first instance
judgment on the basis of the facts thus established;

b) may establish the facts differently from those
established by the first instance court if, on the basis of the evidence
taken, the defendant may be acquitted or the proceedings discontinued.

(2) The appellate court’s assessment, under
(1) above, of the evidence may be different from that of the first instance
court only in respect of those facts in relation to which the appellate
court has taken evidence.”

Section 259

“(1) The appellate court shall uphold the first-instance
court’s judgment, if the appeal is ill-founded, the judgment need
not be quashed or modified, or because it is not entitled to increase
the penalty.”

Section 260

“If the first-instance court applied the law
erroneously and its judgment need not be quashed, the second-instance
court shall modify the judgment and decide according to the law.”

Section 261

(1) The second-instance court shall quash the
first-instance judgment and remit the case to the first-instance court,
if such a violation, other than those listed in section 250(II), of
the procedural rules took place, so that the judgment was substantially
affected... [in particular, if] the first-instance court did not meet
the requirement of reasoning.

Section 262

“(1) The second-instance court shall quash
the first-instance judgment and remit the case to the first-instance
court, if the ill-foundedness, which would be impossible to remedy under
section 258, substantially affected the finding of guilt or the imposition
of the sentence.”

COMPLAINTS

The applicant complains under Article 6 § 1
of the Convention that the proceedings were not fair, in particular
in that the Supreme Court did not hear him. Moreover, he submits, under
Article 6 § 3 (b), that he did not obtain copies of the video recordings
made during the investigation and, under Article 6 § 3 (d), that his
request to have a further expert heard was refused by the Supreme Court.

THE LAW

1. The applicant complains that the fact that
the Supreme Court refused to hear him during the appellate proceedings
rendered the criminal proceedings against him unfair, in breach of Article
6 § 1 of the Convention, which, in its relevant part, provides:

“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...”

A. The Government’s arguments

The Government submit that both the principle
of adversarial procedure and that of ‘equality of arms’ were observed
in the case, since the applicant and his defence counsel had the opportunity
to study the statements and evidence submitted by the public prosecutor
and to address the witnesses and the experts. Although at one stage
of the proceedings the applicant did not wish to give evidence in a
comprehensive way and the appellate court rejected defence counsel’s
motion to hear him in person, altogether he was not deprived of the
procedural means which were also available to the prosecution.

Referring in particular to the Constantinescu v. Romania judgment (no. 28871/95, § 55, ECHR
2000-VIII), the Government emphasise that the first issue to be addressed
is whether the Supreme Court was to try questions of law or fact, i.e.
whether it reviewed the case against the applicant in its entirety.
In this connection, it is to be noted that the appellate court’s reformatory
powers are very limited in that it decides on the basis of the facts
as established by the first instance court and does not take evidence,
unless the first instance judgment is ill-founded and its factual shortcomings
can be remedied without extensive evidence being taken. If, however,
the latter is necessary, the appellate court quashes the first instance
judgment and instructs the lower court to resume the proceedings and
complete the findings of fact, or take evidence anew.

In the present case, the Supreme Court neither
considered the first instance judgment ill-founded nor found it necessary
to take evidence or to hear the applicant. It is true that on 6 November
2001 it heard an expert; however, the evidence given by the latter did
not concern the actual facts of the case but only the handling of certain
exhibits. In the case of Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B,
p. 44, § 63), a similar question on the conduct of the proceedings was
considered by the Court to be a question of law; in this event the appellate
court’s failure to hear the applicant did not amount to a violation
of the right to a fair trial.

Moreover, the applicant’s case did not present
special circumstances requiring the defendant to be heard by the appellate
court, unlike other cases with which the Court has dealt (cf. Constantinescu v. Romania, op. cit., § 58; Botten v. Norway, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 145, § 50; Ekbatani v. Sweden,
judgment of 26 May 1988, Series A no. 134, p. 14, §§ 32-33). Neither the
character of the offence nor the nature of the evidence imperatively
required the applicant to be heard by the appellate court: his credibility
was not decisive in assessing the evidence and, in addition to the witness
testimonies, several exhibits and expert opinion supported the first
instance court’s finding of the applicant guilty. In any event, he
was assisted by defence counsel of his choice throughout the proceedings,
with whose conduct he was satisfied. He was present in the courtroom
at all stages of the proceedings, made observations on the evidence
given by some witnesses, and his counsel cross-examined the witnesses
and put questions to the expert.

Furthermore, by wishing to give evidence in the
proceedings before the Supreme Court, the applicant only intended to
elaborate “his remarks on the judgment” – to quote his counsel
in this connection. However, he had already done so in writing and he
reiterated his position subsequently in his lengthy (several hours)
last address to the court. Although not equivalent to giving evidence,
in practice a last address is an effective tool for the defence and
an integral part of the case file.

Lastly, in so far as the applicant’s right
to silence is concerned, the courts did not draw any conclusions from
the applicant’s refusal to give evidence in a comprehensive way in
part of the earlier proceedings, or evaluate this refusal as evidence
against him. In fact, the applicant had made several, often contradictory
statements, both oral and written, during the investigation and first
trial. However, in the resumed proceedings, he did not give fresh evidence,
referring to his earlier statements which he maintained. The latter
were read out in court and considered as part of the evidence. In sum,
the applicant did not exercise his right to silence. However, even if
he could be regarded as having done so, the Government maintain that
the court’s ruling on the applicant’s guilt was primarily based
on the material and expert evidence, and he did not suffer any prejudice
on account of his refusal to give evidence at the resumed first instance
trial.

B. The applicant’s arguments

The applicant submits that the Supreme Court,
acting as the second instance court, was called on to examine both facts
and law, since in his appeal the applicant also challenged the findings
of fact as established by the Regional Court. Obviously, the Supreme
Court assumed the task of taking evidence when it heard a forensic expert
concerning the transportation and the alleged mishandling of material
evidence, whilst refusing the defence’s repeated requests to hear
another expert who could prove the unprofessional handling of exhibits.

The applicant draws attention to the fact that
the Supreme Court, in its order to quash the first instance judgment,
expressly instructed the Regional Court to hear the applicant with a
view to reconciling the contradictory statements he had made earlier
in the proceedings. Given that his conviction at first instance was
primarily based on some contested microscopic evidence and that neither
the motivation for the murder nor the weapon was identified, the applicant
argues that his evidence was crucial and could not be replaced by the
actions of his lawyer. In reply to the Government’s reference to the Kremzow
case, he maintains that the taking of evidence effected by the Supreme
Court concerned more than a mere question of law, since both the opinions
of the expert who was heard and the one who was not, dealt with factual
issues decisive for the applicant’s guilt.

Although in the resumed first instance proceedings
the applicant had exercised his right to silence, in the appellate proceedings
nothing prevented the Supreme Court from ensuring compliance with its
own instructions to eliminate the contradictions in the applicant’s
earlier statements. This could have been done by the Supreme Court itself
if it had granted his repeated requests and heard him in order to complete
the findings of fact. The mere fact that he was requested to state whether
or not he adhered to the testimony he had made during the investigation
cannot be regarded as giving evidence.

Moreover, the defendant’s right to address
the court last is no substitute for the right to be heard, given that
the last address is not a means of taking evidence, susceptible to questions
or comments, or a basis for the arguments of the defence.

Finally, the applicant insists that he suffered
prejudice for having used his right to silence in the first instance
proceedings, as the Supreme Court refused to hear him for precisely
that reason. The fact that the very court instance which gave the final
judgment in his case refused to take evidence from him rendered the
proceedings unfair, as in the aforementioned Constantinescu and Botten cases.

C. The Court’s assessment

The Court reiterates that the manner of application
of Article 6 to proceedings before courts of appeal depends on the special
features of the proceedings involved; account must be taken of the entirety
of the proceedings in the domestic legal order and of the role of the
appellate court therein. The Court has held that where an appellate
court is called upon to examine the facts and law, and to make a full
assessment of the question of the applicant’s guilt or innocence,
it cannot, as a matter of fair trial, properly determine those issues
without a direct assessment of the evidence given by an accused who
claims that he has not committed the act alleged to constitute a criminal
offence. Accordingly, in order to determine the well-foundedness of
the applicant’s complaint, an examination must be made of the role
of the Supreme Court and the nature of the issues which it was called
upon to determine (see, among other authorities, Constantinescu v. Romania, op.cit., §§ 53 to 56).

The Court observes that in the instant case the
scope of the Supreme Court’s powers, sitting as an appellate court,
was essentially set out in sections 238 to 240 and 257 to 262 of the
Code of Criminal Procedure. In particular, it could uphold the first-instance
judgment, or quash it for irremediable shortcomings, or modify it in
a judgment (see sections 238 and 257 of the Code of Criminal Procedure).

In the first round of the present case, the Supreme
Court quashed the first-instance proceedings. In the second round, it
upheld the first-instance judgment by way of an order, whilst completing
and rectifying certain limited findings of fact in accordance with subparagraph
(a) of section 258(2) of the Code of Criminal Procedure. Following the
defence’s submission of a private expert, it ordered the taking of
evidence under sections 240 and 248(2) of the Code of Criminal Procedure
on the sole question of the handling of material evidence. The applicant
was able to contest the ensuing opinion of the expert chemist at a hearing
on 15 October 2001. This closed the taking of evidence. The Court does
not consider that this limited completion of the evidence by the Supreme
Court constituted a full re-hearing of the case which would also have
required hearing the applicant.

It is also to be noted that, unlike in the cases
of Constantinescu
and Botten
where the appellate courts were the first courts to convict the applicants
after overturning their acquittals, in the instant case the Supreme
Court simply reviewed and confirmed the applicant’s conviction by
the lower court.

In these circumstances, the Court does not find
that the proceedings before the Supreme Court were a full review governed
by the same rules as a trial on the merits. Consequently, the Court
is satisfied that, unlike in the above-mentioned Constantinescu case, the Supreme Court was not called on to
make a full assessment of the applicant’s guilt. Its scrutiny having
been restricted primarily to questions of law, it was in essence the
Regional Court which had established the factual elements underlying
the determination of the criminal charge against the applicant.

In this connection, as regards the second proceedings
before the Regional Court, they were clearly of an adversarial nature,
in which the applicant, assisted by defence counsel, and the prosecution
enjoyed equal rights of access to the material evidence and in the questioning
of the witnesses and experts. It was the applicant’s own decision
not to give evidence before the Regional Court, which took note of his
position and arranged for the oral reproduction in court of all the
previous statements he had made throughout the proceedings. The applicant
and his lawyer were at all times in a position to make comments on those
statements. In the absence of any negative inferences being drawn from
the applicant’s conduct before the Regional Court, the Court is satisfied
that his defence rights, in particular the right to silence, was not
infringed.

In the light of the foregoing, the Court concludes
that the Supreme Court’s refusal to hear evidence directly from the
applicant did not impair the essence of his right to a fair hearing.
It follows that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 and must be rejected pursuant to Article
35 § 4 of the Convention.

2. The applicant also complains that the Supreme
Court did not place at his lawyer’s disposal copies of the video recordings
made during the investigation, and that it refused to hear a further
expert proposed by the defence. He relies on Article 6 § 3 (b) and
(d) of the Convention, which provides as follows:

“3. Everyone charged with a criminal offence
has the following minimum rights: ...

(b) to have adequate time and facilities for the
preparation of his defence; ...

(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him; ...”

Concerning the complaint about the video recordings,
the Court considers that the Supreme Court’s position – according
to which the defence was entitled to obtain copies of any written minutes
prepared on the basis of the recordings – does not as such disclose
any arbitrariness prejudicing the applicant’s defence rights. In any
event, the Court is satisfied that the recordings were played during
the Regional Court’s resumed proceedings and were thus available to
both the prosecution and the applicant, who was not thereby deprived
of any facilities for the preparation of his defence.

As to the refusal to hear a private expert, the
Court reiterates that, as a general rule, it is for the national courts
to assess the evidence before them as well as the relevance of the evidence
which defendants seek to adduce. More specifically, Article 6 § 3 (d)
leaves it to them, again as a general rule, to assess whether it is
appropriate to call witnesses; it does not require the attendance and
examination of every witness on the accused’s behalf (cf. Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99,
§ 57, ECHR 2001-X); this principle holds true also for experts (see Baragiola v.
Switzerland, no. 17265/90, Commission decision of 21 October 1993,
Decisions and Reports Note75,
pATE.
76). The ATECourt
notes that this expert’s written opinion was nevertheless admitted
to the case file. It finds, therefore, that the applicant’s defence
rights were not impaired in this respect.

It follows that this part of the application
is likewise manifestly ill-founded within the meaning of Article 35
§ 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

S.Naismith J.-P. Costa
Deputy Registrar President

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